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Tajammul HusaIn Khan Vs. Nawabdad Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.830
AppellantTajammul HusaIn Khan
RespondentNawabdad Khan and ors.
Excerpt:
court fees act (vii of 1870), section 10 - stay of suit--deficiency of court-fee--munsarim's report as to deficienry on the day of presentation--deficiency made good within time fixed--limitation--suit not barred. - - he fixed the sum which had to be paid and directed the deficiency to be made good within 4 days. until the deficiency had been made good within the time granted by him......in the court-fee as regards the property not assessed to government revenue.2. the subordinate judge held the question over and wished to hear arguments on the point. a day was fixed, namely, the 4th of january, 1905. after hearing arguments and apparently after considering the report on the enquiry ordered by the munsif, the subordinate judge came to the conclusion that the court-fee was insufficient. he fixed the sum which had to be paid and directed the deficiency to be made good within 4 days. the order was complied with and the deficiency put in by the 7th of january, 1905. on that date the subordinate judge ordered the suit to be registered. he then considered the suit on its merits and decreed a portion of. the claim brought by the plaintiff. in the coarse of his judgment the.....
Judgment:

1. The suit out of which this appeal arises was first instituted in the Court of the Munsif of Kaimganj. The plaint was presented to that Court on the 28th of (September 1904. It so happened that the period of limitation prescribed for the suit expired on the 29th of September 1904. The Munsarim of the Munsif's Court on the 23th of September 1904 reported inter alia that the Court-fee affixed to the plaint was sufficient and the Munsif on that report ordered that the plaint be registered as a suit.' Doubt arose whether the case was within the jurisdiction of the Munsif having regard to the value of the subject-matter of the suit. The Munsif directed an enquiry to be held in which he had the aid of the Tahsildar and came to the conclusion that the value of the subject-matter was one beyond his jurisdiction. He accordingly on the 30th of November 1904, returned the plaint for presentation to the proper Court. By the following day the plaintiff presented the plaint in the Court of the Subordinate Judge of Farrukhabad. The Munsarim of that Court reported that as a result of the enquiry of the Munsif, there was a deficiency in the Court-fee as regards the property not assessed to Government revenue.

2. The Subordinate Judge held the question over and wished to hear arguments on the point. A day was fixed, namely, the 4th of January, 1905. After hearing arguments and apparently after considering the report on the enquiry ordered by the Munsif, the Subordinate Judge came to the conclusion that the Court-fee was insufficient. He fixed the sum which had to be paid and directed the deficiency to be made good within 4 days. The order was complied with and the deficiency put in by the 7th of January, 1905. On that date the Subordinate Judge ordered the suit to be registered. He then considered the suit on its merits and decreed a portion of. the claim brought by the plaintiff. In the coarse of his judgment the learned Subordinate Judge uses these words 'I hold that Section 10 applies, that the full Court-fee has been paid in this Court and that the suit is not time-barred' From this it is evident that the Subordinate Judge held that he had acted on the power given him by Section 10 of the Court Fees Act to stay the suit. until the deficiency had been made good within the time granted by him. In appeal the learned District Judge held that there was no mistake or inadvertence in the Subordinate Judge's Court. According to the Full Bench ruling in Balkaran Rai v. Gobind Nath Tewari 12 A. 129 the Subordinate Judge could not apply Section 10 of the Court Fees Act and the suit was barred by limitation.' He accordingly dismissed the plaintiff's suit. In the appeal before us it is contended by the learned Vakil for the appellant that Section 10 of the Court Fees Act does apply to this case as also do the principles laid down in the Full Bench ruling in Hari Ram v. Akbar Husain 29 A. 749 : 2 M.L.T. 375 : 4 A.L.J. 636 : A.W.N. (1907) 253 (F.B.). We hold that this contention is sound. We accordingly decree this appeal, set aside the decree of the lower appellate Court and remand the case to that Court under order 41, Rule 23, with directions to re-admit it under its original number in the register of appeals and to dispose of it on the merits. We make no order as to costs.


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